Land Pollution and Contamination

Land pollution is a specific type of pollution that relates to the degradation of the earth’s dry surface.

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In the UK, with two-hundred and fifty years of industrial production behind it, land pollution can be a major problem. Many heavy industries that were once the driving force of the nation’s economy have been closed down, and these old, abandoned sites now pose a major hazard.

A 2005 estimate has it at 325,000 former industrial sites that have polluted the surrounding land because of their use in industry, with 33,500 of those sites requiring cleaning. Though the threat of land pollution is not over because of the cessation of the majority of heavy industry, many power stations remain, and waste disposal and agricultural use of herbicides and pesticides are also great risks to land pollution.

The problem of pollution is not only limited to the site that may be causing the pollution either; sites have the ability to infest the surrounding area with their pollution. For example, landfill sites produce methane, which, when poorly managed, can travel underground.

The Environmental Act 1995 details the legal procedure for dealing with sites of land pollution and also who is responsible. It states that anyone who caused or knowingly permitted substances that require remediation due to land pollution shall be held responsible for the pollution. If no such person can be found after an inquiry then the person responsible is considered to be the current owner.

Types of Land Pollution

In the occasion of pollution becoming transferred from the original site of pollution, it becomes known as pollution linkage. This happens when there is a pathway that the pollution can move along in order to get to and pollute another site or harm a living organism or ecosystem. Examples of different types of pollution linkage can be:

  • Airborne – a site with asbestos could have its harmful material borne upon the wind and affect nearby people. Emissions from a factory could similarly ride the breeze to a nature reserve located in close proximity and cause damage to the ecosystem in existence there.
  • Waterborne – liquid chemicals from a spillage that get into the drainage system and are transported into a river or stream, contaminating it.
  • Absorption through the land – again this will most likely result from a chemical spillage, which is not diffused by the soil and is transferred through the ground, pollution will eventually be caused when it comes into contact with a water source.
  • Radiation – in physics, radiation is the transfer of energy particles or waves through a medium or space; in relation to pollution it is most likely to be radiation of radioactive waste from a nuclear power plant.

This linkage may cause a new site to be certified contaminated land in four instances defined in the Environmental Protection Act 1990 and the Environment Act 1995:

  1. Significant harm is being caused
    1. There is the possibility of significant harm being caused
  2. Pollution of controlled waters
    1. There is the possibility of pollution of controlled waters

Significant harm is regarded as something causing human disease, serious injury, birth defects, genetic disorders, mental dysfunction and impairment of the reproductive functions. Controlled waters are all the waters in the UK as well as coastal waters up to three miles from shore.

Contaminated Land

In UK law contaminated land is defined as land that, due to substances on, in or under it, is being caused harm or has the potential to be harmed, or is doing either of the above to water sources.

The definition of what constitutes harm is if living organisms are being interfered with or if ecological systems, which are essential to the life of certain creatures, are being damaged. This can include the damage of property.

The designation of what is contaminated land should be determined by the local authority under whose jurisdiction the land falls.

Contaminated land laws

Local authorities are required to undertake inspections of their land ‘from time to time’ to determine whether there is any land that could be considered contaminated and which will require remediation.

Both the Environmental Protection Act 1990 and the Environmental Act 1995 detail the legal procedure for dealing with sites of land pollution and also who is responsible. It states that anyone who caused or knowingly permitted substances that require remediation due to land pollution shall be held responsible for the pollution and be liable to provide for that remediation.

If no such person can be found after an inquiry then the person responsible for remediation is the current owner, though only on the land that they own or occupy. No remediation needs to be undertaken on land other than that which is owned if the pollution has escaped from the confines of its original site of pollution.

Causes

Contaminated land may result from substances being left in abandoned buildings or being buried when the site was determined to no longer be of any use; old industrial sites are the most common places where contamination occurs. Pollution can spread and lands adjacent to former industrial sites can also become contaminated.

Strategy

When a local authority identifies a piece of land that is contaminated or has been affected by pollution linkage,the first part of its strategy is to inform several parties. These are the owner, the occupier (if one exists), the Environment Agency, and, if the owner is not responsible and had no knowledge of the polluting substances, the persons responsible.

Once these people have been informed negotiations for the clean up can commence. If the owner or occupier did not cause or permit the substances to contaminate the land then suitable persons must be sought; if they cannot be located then the owner will be held responsible for the land that they own, or the occupier for the land that they occupy. The owner and occupier of contaminated land that polluted another portion of land through linkage, if they did not cause or permit the substances to contaminate the land, cannot be held responsible for other land that has been contaminated by pollution linkage.

Cleanup

Once a site has been identified as being contaminated land, the responsible party has been determined and the remediation process has been agreed, a cleanup can commence. However, it is not a case of simply removing all the polluting material from the site. The law states that the site must only be made safe for the use to which it is going to be put in the future.

If this means that it is going to revert back to its industrial heritage then the cleanup will be moderate, whereas if it is only harming the surrounding ecosystem then steps merely need to be taken to halt this. If housing developments are to be put on the land then the process may need to be more thorough in order to make it safe for human habitation.

It is not an unusual occurrence for a pre-used site to be re-used for residential development, indeed the figure of all new buildings in the UK stood at 73% built on formerly used sites – an 18% increase from five years previously. The cleanup of such a piece of land only needs to ensure that the new houses will be safe enough for humans to live in, not necessarily an atavistic change to its natural state.

Remediation

Sometimes it is possible for the local authorities and the Environment Agency to negotiate with those responsible for the remediation of the land and extract a voluntary clean up proposal. However, this is not always possible and if by 3 months there has been no solution the local authority can issue a formal remediation notice.

If the responsible party still refuses to perform remediation of the contaminated site then criminal proceedings can be brought against them, the local authorities can run their own clean up and they can seek to reclaim their costs from those responsible.

Contaminated Land Register

All local authorities will keep a register of sites that are considered to be contaminated land, along with the remedial notices that may have been served about those sites and information regarding any cleaning that may have been undertaken. These contaminated land registers are open to public access.

Purchase of a house will necessitate a solicitor checking the relevant local register to determine if the land on which it has been built has ever been contaminated and, if so, what remedial work has been done to the site. The register will only hold information if the land has ever been designated as contaminated land, and the propensity for local authorities to do this is not high.

So there may be the possibility that land upon which a house is built has previously been used for industrial purposes and may or may not be contaminated. The only way to find out this information is investigation, i.e. to undertake a specific commercial search; it is also possible to insure against contaminated land if it is thought that the possibility of the land being designated as contaminated may arise.

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